Scottish Sheriff Court Decisions

PROCURATOR FISCAL, GLASGOW v. ROSEANN BOYLE [2000] ScotSC 15 (14th June, 2000)

99042917/TY45/HA/11 February 200

GLASGOW, 14 June 2000.

At this preliminary diet, I am invited by solicitor for the accused to dismiss the complaint as incompetent. The submission is that by virtue of Section 57(2) of the Scotland Act 1998, the procurator fiscal has no power to prosecute this case since to do so would be incompatible with the accused's right under Article 6(1) of the European Convention on Human Rights in the following terms:-

The procurator fiscal maintains that the complaint has been brought within a reasonable time in terms of Article 6(1).

The complaint involves two charges against the accused, one of reset and one of obtaining goods by fraud. I was informed that the police started their enquiries on 3 December 1998. The accused was interviewed by the police under tape-recorded conditions on 20 May 1999. At the end of that interview, she was cautioned and charged. The matter was reported to the Procurator Fiscal's Office by the police on 20 August 1999. That report was considered by a procurator fiscal depute to be defective in that it did not specify the details of an essential witness to speak to the original theft and it did not include details of any criminal record of the accused. The Procurator Fiscal's Office wrote to the police requesting this information on 17 November 1999 and it was provided on 26 November 1999. I was informed that the case was marked by a procurator fiscal depute on 24 January 2000. In due course the complaint was served on the appellant. I was not given the exact date of service of the complaint, but it called in Glasgow Sheriff Court on 14 March 2000.

I was referred to the case of McNab v HMA 1999 SCCR 930 and HMA v James Hynd (unreported decision by Lord Bonomy on 9 May 2000). It was there set out that what was reasonable depended upon the particular circumstances of the case. The question for the court was whether the accused had been brought to trial within a reasonable time of being charged, having regard to the whole period involved and the whole procedure involved. That question had to be determined not exclusively in the light of the time limits that apply in Scottish criminal procedure but by looking broadly at the whole circumstances of the case. In deciding whether there has been unreasonable delay in bringing the case to trial, the relevant factors include the conduct of the accused, the complexity of the case, and the conduct of the competent authorities of the state.

The first issue was the starting point for the "reasonable time". I was referred to the case of Eckle v Federal Republic of Germany 1982 5 EHRR 1 para 73 which reads:-

The first submission made on behalf of the accused was that the starting point should be the date when the police started their enquiries, being "the date when preliminary investigations were opened". I do not agree with that interpretation of para 73 in Eckle. The starting date is the date of "charge" which is "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence". In terms of Eckle that date might be the date when preliminary investigations were opened, but in this case it is clear from the narrative which I was given that the date of charge was when the accused was cautioned and charged after the tape-recorded interview on 20 May 1999. I accordingly hold that the date from which the "reasonable time" starts is 20 May1999.

In this case, it was not suggested that the conduct of the accused had contributed to the delay and it was not suggested that the case was in any way complex. As far as the conduct of the competent authorities of the state is concerned, it appears that it took the police three months after charging the accused to report the matter to the procurator fiscal as it was not reported until 20 August 1999. When a procurator fiscal depute looked at the papers, it was found that they were defective in that the details of an essential witness to speak to the original theft had not been provided and the accused's record had not been included. The information was required of the police on 17 November 1999 and was provided on 26 November 1999. The case was marked by a depute on 14 January 2000 and thereafter the summons was served to allow it to call in Glasgow Sheriff Court on 14 March 2000.

For the accused it was submitted that the history of the case gave no explanation as to why there were these periods of delay. It had taken the procurator fiscal just under 10 months from the accused being cautioned and charged to have the case call in court. It was submitted that this was summary justice and cases should be dealt with summarily and expeditiously. It was submitted that on the face of it, the case had not been brought within a reasonable time and the delay demanded detailed explanation. This had not been forthcoming. There was no explanation as to why it took the police 3 months to report the case to the procurator fiscal. There was no explanation as to why there was no action in the procurator fiscal's office from 20 August 1999 when the case was reported until 17 November 1999 when minor further information was required from the police. After the nformation was supplied on 26 November 1999, there were no detailed explanation as to why it took until 14 March 2000 to bring the case into court.

I was referred by the procurator fiscal depute to para 80 in the case of Eckle supra which stated - "The reasonableness of the length of the proceedings must be assessed in each instance according to the particular circumstances. In this exercise, the court has regard to, among other things, the complexity of the case, the conduct of the applicants and the conduct of the judicial authorities. The present case concerns sets of proceedings that endured 17 years and 10 years respectively. Such a delay is undoubtedly inordinate and is, as a general rule, to be regarded as exceeding the "reasonable time" referred to in Article 6(1). In such circumstances, it falls to the respondent State to come forward with explanations".

It was argued by the procurator fiscal depute that for there to be a breach of Article 6(1) it had to be shown that there had been inordinate delay. In the case of Eckle delays were 17 years and 10 years and it was not too difficult to call these periods of delay inordinate. I do not think it correct to give the use of the word "inordinate" the significance which the procurator fiscal depute attached to it. I consider the Judge in the case of Eckle was merely describing delays of the order of 17 years and 10 years as "inordinate". The test here is not whether there has been an inordinate delay, but whether the accused has received a hearing within a reasonable time. The procurator fiscal depute submitted that in this case, in all the circumstances, the period of delay was not such a long period and was not so unreasonable as to call for a detailed explanation by the Crown. It was accepted that the case may have progressed slowly, but the delay was neither inordinate nor unreasonable.

This case is a summary prosecution where the facts are simple indeed. The accused is alleged to have encashed a stolen cheque. On the face of it, to take almost 10 months to bring such an alleged offender to court after caution and charge involves unreasonable delay on the part of the authorities. In my opinion that delay demands satisfactory explanation and no such explanation has been placed before me.

In these circumstances, I consider the devolution issue which has been placed before the court is well founded. In my opinion, there has been a breach of Article 6(1) of the European Convention on Human Rights. The accused has not received a hearing within a reasonable time. I accordingly dismiss the complaint as incompetent.